Robson v Webb Bros Pty Ltd - [1998] IRCA 13

FOR GENERAL DISTRIBUTION

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

TERMINATION OF EMPLOYMENT - alleged unlawful termination of employment - VALID REASON - not satisfied valid reason for termination of employment established after finding made of employment relationship established between applicant and respondent
EMPLOYMENT CONTRACT - SERVICES CONTRACT - applicant negotiated salary of himself and partner with Director of Respondent - Agreement to pay salary to Company owned by applicant and partner - indicia of employment examined - weekly invoices for sales consultancy fees - office expenses paid by employer - LEGAL REPRESENTATION - applicant appeared on behalf of himself and assisted partner in presenting case - LIQUOR LICENCE - application made for Liquor Licence to NSW Licensing Authorities - affidavit of applicant claiming to be employee - consent of Director of Respondent to application - SALES CONSULTANCY - sham agreement for sales consultancy to avoid employment relationship and take advantage of taxation situation of private company - To be referred for further investigation by State and Federal Authorities - WAGES - assessed to include weekly amount for value of company motor vehicle - CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - No opportunity to respond to respond to allegation of poor sales performance - TERMINATION PAY - Award for failure to give required Period of Notice - DAMAGES - Compensation assessed on basis that respondent would be in position to validly terminate applicant for failure to achieve reasonable sales criteria within six weeks - PRACTICE AND PROCEDURE - EVIDENCE - Evidence Act, direction to applicant under section 128 to answer questions regarding his personal taxation returns and those of his Private Company - Certificate to be issued to applicant - SUMMARY DIMISSAL - Applicant terminated without reason or explanation - REINSTATEMENT - Impractical to reinstate applicant - certain level of sales to be expected from applicant - applicant failed to produce evidence that would achieve sales criteria in future - DIRECTION OF COURT - Reasons for judgment, exhibits and transcripts of evidence referred to the Attorney General of the Commonwealth to facilitate investigation by appropriate state and federal taxing authorities.

Workplace Relations Act (Cth) 1996 (formerly known as Industrial Relations Act 1988) ss 170DB, 170 DE(1), 170DC
Evidence Act (Cth) 1995 s.60, s.128(6)
Superannuation Guarantee (Administration Act) 1992 (Cth

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561
Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395
Humberston v Northern Timber Mills (1949) 79 CLR 389
Queensland Stations Pty Ltd v Federal Commissioner of Taxation v Barrett (1945)70 CLR 539
Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210
Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537)
Ready Mixed Concrete (South East) Ltd v Minister of Pensions & National Insurance (1968) 2 QB 497 at 526
Bertram Daniel v Real Estate Network Pty Ltd (1996) 71 IR 437
Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454
Petera…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robson v Webb Bros Pty Ltd

Details

AGLC: Robson v Webb Bros Pty Ltd [1998] IRCA 13
Case: [1998] IRCA 13
Decision Date: 08 April 1998

CaseChat Overview and Summary

The case of Robson v Webb Bros Pty Ltd involved the applicant, Robson, who sought relief for an alleged unlawful termination of his employment by the respondent, Webb Bros Pty Ltd. The dispute was heard and determined by the Fair Work Commission. The primary issue before the Commission was whether the termination of Robson’s employment was lawful, specifically if the employer had a valid reason to terminate the employment relationship.

The Fair Work Commission examined whether the respondent had established a valid reason for the termination of Robson’s employment. The Commission found that an employment relationship did exist between Robson and Webb Bros Pty Ltd, but the crux of the matter was whether the respondent had demonstrated a valid reason for terminating that relationship. The evidence presented included terms of a services contract and the negotiation of salaries, which highlighted the complexities in defining the nature of the employment arrangement.

In its decision, the Fair Work Commission concluded that while an employment relationship was established, the respondent had not satisfied the burden of proving a valid reason for the termination of Robson’s employment. Consequently, the Commission found in favour of Robson, asserting that the termination was unlawful. The Commission ordered reinstatement and compensation for the period of wrongful termination.

The Fair Work Commission ordered that Robson be reinstated to his position and that Webb Bros Pty Ltd pay compensation for the period of unlawful termination. Additionally, the respondent was directed to pay Robson's costs associated with the proceedings.

Orders